This is an English translation of the article by Adv. Dipendra Jha that appeared originally in Setopati.
When the government decided to withdraw cases related to the Tikapur incident, I decided not to comment because I thought it would be inappropriate for me to comment on the cases that are sub judice now. Another reason why I did not intend to comment on the issue was that I had pleaded on behalf of one party to the case (the accused).
However, that changed when I remembered the face of Lahuram Chaudhari and Bir Bahadur Chaudhari who are languishing in Kailali prison and whose land property is going to be auctioned. I also remembered the face of Bishram Chaudhari whose family members are facing a hard time to keep their body and soul together. Therefore, I could not resist my urge to write something on the issue, mainly because I champion the cause of human rights. I know very well the significance of indictment in criminal cases.
Not taking action in criminal incidents promotes impunity which goes against the norms and values of a civilised society.
I am committed to this value of the rule of law. And when I say this, I also must state that it is the court’s duty to define what crime is. It is the court that decides who is guilty and who is innocent. The court fixes the quantum of punishment for a crime committed by somebody. I decided to comment on this issue when the media outlets, civil society, political parties and the National Human Rights Commission (NHRC) conducted a trial on the Tikapur incident. Their argument was that those who are in prison for their alleged role in Tikapur incident should not be released. Let me remind you that the cases filed against individuals for their alleged role in the Tikapur incident have not been adjudicated yet. It is against the principle of a fair trial to declare somebody a criminal or make such a comment before the court gives its verdict on a case.
Almost four dozen people were killed during last year’s Madhes movement and hence I cannot argue that such cases should be withdrawn, because two wrongs cannot make a right.
Killing a human being is itself a crime, whether it is committed by uniformed security personnel or by an ordinary person. Such cases require thorough, impartial and credible investigation and there should be a fair trial of such cases.
The recent decision of the Council of Ministers regarding the withdrawal of cases is incomplete and unclear. The government decided to procure case files from Ministry of Law, Justice and Parliamentary Affairs through the Ministry of Home Affairs. How can the government make such a decision? It is an administrative and technical decision to procure case files. Should the government make a decision for such a thing?
This appeared to be an attempt to provoke people. Is there any meaning for making a hue and cry over something which does not exist in a real sense? Had people reacted in this manner after any serious case had been withdrawn, then such reaction could have been deemed appropriate.
What is surprising is that even the NHRC had stated in its investigation report that those detained for their alleged role in the Tikapur incident have claimed that they are innocent and they were framed by prejudice. The office bearers of the probe commission formed to investigate human rights abuses committed during the Madhes movement have also visited Tikapur and interviewed the victims and all stakeholders. Various media outlets reported that during the probe commission’s discussion, not only the victims but also various stakeholders told the commission that excesses were committed while filing charges in the Tikapur incident.
People whose names were not in the FIR had also been arrested and people who had no involvement in the movement had also been arrested and indicted.
The report also said that the cases were filed to instill fear in the minds of the local Tharu leaders. Local lawyers have also said that the district judges were also of the view not to move process on the cases and they wanted those cases to be settled politically.
It is against this backdrop that the government decided to withdraw the cases after determining which cases were filed mainly due to individuals‘ political ideologies. The people who made a hue and cry over this decision of the government did not utter a single word when Tharus’ houses were set on fire (in the immediate aftermath of the Tikapur incident) and when Tharus were subjected to torture and they were also displaced from their houses for months—all state-aided brutality. Such an interpretation of human rights is flawed.
Who will understand the pains of Tharus who have not been able lodge their FIRs until now for the attack and arson committed against them and their properties?
There is a principle in criminal justice that it is better that 100 guilty men go free than one innocent man be wrongly convicted.
It is difficult to say who attacked with spears in a large crowd. It is not justifiable to detain all of the Tharu villagers. This was a criminal incident and cannot be given a political colour; only a thorough and scientific investigation can reveal who were the real culprits. A scientific investigation of the Tikapur incident has not been conducted yet. When one looks at the case files, one reaches the conclusion that the police, who are a party to the case, have acted with prejudice rather than conducting a fair investigation in the cases.
When emotions are allowed to affect an investigation, then there is a risk that the guilty will go scot-free and the innocent will be punished. Such a situation can be compared to a situation when a judge adjudicates his own case. Our own constitution has said that “every person charged with an offence shall be presumed innocent until proved guilty” by the court. Who should decide a case—a competent court, or a mob which issues a fatwa? Does this suit the norms of a civilised society?
My heartfelt condolences are with those who lost their loved ones in the Tikapur incident. The victims‘ families have all the right to get justice. As a lawyer who has studied the case file and analysed carefully the facts and evidence of the cases, I can say that, except for one or two individuals, the accused had no role in the incident, yet they have been detained for the last two years. They were named in the FIR due to their political ideology and Tharu ethnicity. Their names were picked from the voters list. The real culprits have escaped the prosecution.
The incident was unnecessarily scandalised and the real culprits were allowed to go unpunished, while 22 innocent people have been detained for the last two years. Have we ever thought as to what would be the economic and mental effects of detention on them? Should our criminal justice system be guided by the dictates of a mob, or should it be based on a scientific investigation method, a fair trial and the court’s verdict? And when I say this, I can empathize with the families of those police personnel and the parents of the child who was killed in their innocence. I would have suffered the same loss and trauma if I had lost my daughter Arya.
Comments made on the basis of political and racial prejudice and comments made without understanding the facts in depth can only lead to a situation where the real culprits escape punishment and the innocent persons are punished. Such a situation does not ensure justice for the victims’ families, nor does it boost the morale of the police. The current debate around the issue of withdrawal of cases could lead to a situation where the guilty would go unpunished and the innocent would be punished. Above all, the government cannot arbitrarily withdraw cases.
The procedures prepared regarding the withdrawal of cases are based on the three orders passed by the Supreme Court. The government can withdraw cases only according to the same procedures which clearly state that the government cannot withdraw cases of serious criminal offences. Only those cases that are slapped on individuals due to their political beliefs would be withdrawn. But not all cases can be withdrawn. Each case should be analysed carefully. The cases of those who are absconding cannot be withdrawn. When a conclusion is reached after carefully analyzing the details of the each case, that certain cases were slapped on individuals due to their political ideology, then only those cases could be withdrawn with the permission of the court. The government will have to prove the validity of its decision to withdraw such cases. In such a situation, the parties to the cases should prove their arguments. This means that cases cannot be withdrawn without the permission of the court.
We are trying to influence the court which can take its decision tomorrow on the basis of the validity and reason for its decision to grant permission to withdraw cases. If somebody is not satisfied with the court’s decision to grant permission to withdraw cases, then he or she can still go to the higher courts against the lower court’s decision to grant permission to withdraw cases. If one argues that there should be no provision to withdraw any case, then it is a totally different matter. Had there not been provisions for withdrawing cases slapped against individuals, then the current Prime Minister, Vice President and the Speaker would have continued to serve jail time. We can easily remember that the treason charge slapped against BP Koirala was withdrawn. Not only that, cases against Girija Prasad Koirala, Manmohan Adhikari and KP Sharma Oli were also withdrawn after democracy was restored. It was during the rule of Girija Prasad Koirala, Baburam Bhattarai and Madhav Kumar Nepal that the most cases were withdrawn. Therefore, one cannot say that what somebody did was right and what others are doing is wrong. One has to be mindful what harm such a comment, made without analysing carefully the issues, can inflict in the life of others. One should think what would be the impact of the responsible bodies’ conclusion made on the basis of media reports if the court tomorrow acquits individuals of a crime.
Tharus are known as a peace loving and innocent community. They lost their own land and were forced to live as Kamaiyas (bonded labourers) due to discriminatory policies of the state. Tharus are a community of hard-working people who lead simple lives. They have access neither to permanent state power nor to the country’s commerce. Most of the trader Tharus in Kailali and Kanchanpur are those young people who run errands for others. Do you think that they are violent murderers? If not, why are 22 people languishing in jail for the last two years, due to one or two individuals who might be guilty? Is this justice? Their cases have been sub judice for two years without the case process moving ahead. Perhaps the state wants to prolong the cases and detain the accused for four years because it fears that the court might acquit them.
If the court acquits anybody among the 22 detainees tomorrow, will the state compensate the innocent people for their material and mental loss they have suffered and the time they failed to complete their education due to detention?